IN THE COURT OF APPEALS OF IOWA
No. 14-1208 Filed March 25, 2015
STATE OF IOWA, Plaintiff-Appellee,
vs.
REBECCA LYNN OELMANN, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Wright County, Paul B. Ahlers,
District Associate Judge.
Rebecca Oelmann appeals from the sentence imposed following her guilty
plea, asserting the district court considered an improper sentencing factor.
AFFIRMED.
Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary A. Triick, Assistant Attorney
General, Eric Simonson, County Attorney, and Jonathan Murphy, Assistant
County Attorney, for appellee.
Considered by Vogel, P.J., and Doyle and McDonald, JJ. 2
DOYLE, J.
Rebecca Oelmann appeals the sentence imposed following her guilty
plea. She asserts the sentencing court considered an improper sentencing
factor. We find the district court did not rely on an improper factor in sentencing
Oelmann. Accordingly, we conclude there was no defect in the sentencing
procedure. We therefore affirm.
The State originally charged Oelmann with the crime of theft in the second
degree, in violation of Iowa Code sections 714.1(1) and 714.2(2) (2013), a class
“D” felony. The charge arose out of Oelmann’s presenting checks written on a
closed account on September 3 and 4, 2013. Oelmann and the State reached a
plea agreement. The State agreed to amend the charge to theft in the third
degree, in violation of Iowa Code sections 714.1(6) and 714.2(3), an aggravated
misdemeanor, and Oelmann agreed to plead guilty to the amended charge. The
State also agreed to recommend a sentence of 120 days in jail with all but four
suspended, in forty-eight-hour increments, probation for one year, restitution,
plus a fine, costs, and miscellaneous surcharges. Additionally, the sentence
would run concurrent with a sentence imposed against Oelmann in Franklin
County. The court accepted Oelmann’s guilty plea and set sentencing for
hearing. At the sentencing hearing, held in July 2014, the district court imposed
a sentence of 180 days in jail with all but thirty days suspended. Oelmann was
placed on probation for two years. She was also ordered to pay restitution, a
fine, court-appointed attorney fees, court costs, and miscellaneous surcharges.
She now appeals asserting the sentencing court considered an improper factor in
imposing the sentence. 3
Our review is for correction of errors at law. State v. Thomas, 547 N.W.2d
223, 225 (Iowa 1996). The decision to impose a sentence within statutory limits
is “cloaked with a strong presumption in its favor.” State v. Formaro, 638 N.W.2d
720, 724 (Iowa 2002). The sentence will not be upset on appeal “unless the
defendant demonstrates an abuse of trial court discretion or a defect in the
sentencing procedure.” State v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000).
An abuse of discretion is found only when the sentencing court exercises its
discretion on grounds or for reasons clearly untenable or to an extent clearly
unreasonable. Thomas, 547 N.W.2d at 225. The consideration by the trial court
of impermissible factors constitutes a defect in the sentencing procedure. Id.
One impermissible factor is the consideration of another criminal offense
where the facts before the court do not show the defendant committed the
offense. See State v. Longo, 608 N.W.2d 471, 474 (Iowa 2000). It is a well-
established rule that a sentencing court may not rely upon additional, unproven,
and unprosecuted charges where the defendant has not admitted to the charges
or facts are not presented to show the defendant committed the offenses. See
State v. Formaro, 638 N.W.2d 720, 725 (Iowa 2002). When a sentence is
challenged on the basis of improperly considered, unproven criminal activity, “the
issue presented is simply one of the sufficiency of the record to establish the
matters relied on. There is no general prohibition against considering other
criminal activities by a defendant as factors that bear on the sentence to be
imposed.” Longo, 608 N.W.2d at 474. However, if a court uses any improper
consideration in determining a sentence, resentencing is required. Grandberry,
619 N.W.2d at 401. This is true even if the improper factors are a “secondary 4
consideration.” Id. We are not free to “speculate about the weight the trial court
mentally assigned to [the improper factors].” State v. Messer, 306 N.W.2d 731,
733 (Iowa 1981).
At the sentencing hearing, the court asked about Oelmann’s criminal
history. The prosecutor informed the court “there’s a second degree theft out of
Franklin County which was sentenced in February of this year.” Oelmann’s
counsel agreed that was correct and agreed Oelmann’s five-year prison
sentence on that conviction had been suspended. It appears that offense
occurred in June 2013. Prior to pronouncing sentence, the court explained the
factors it considered in fashioning a sentence:
Ms. Oelmann, you are hereby adjudicated guilty of the crime of Theft in the Third Degree, an aggravated misdemeanor, in violation of Iowa Code Sections 714.1(6) and 714.2(3). In terms of a sentence, I believe the sentence I am to impose here today provides for your rehabilitation and protection of the community. To the extent these details have been made known to me, I have taken into account your age, your lack of employment—or I guess your employment circumstances, which is some employment because you are making some earnings from your babysitting job for your cousin, your family circumstances, your criminal history, including the fact that you had already been charged with theft in the second degree and ultimately convicted of that theft in the second degree and ultimately convicted of that offense when you committed the crime that brings you here today.
Defense counsel objected, “I believe we determined that she was convicted
after.” The court responded, “She was convicted after. She was charged, the
Trial Information was filed July 29. . . . Complaint filed July 15. Offense date
here is September 2nd.” The court went on to state, “My point being that you
knew that you had—were in trouble for the prior crime when you committed this
one so you knew those charges were pending when this one was committed.” 5
On appeal Oelmann argues,
The court relied on the misapprehension that she had already been convicted of theft in the second degree in Franklin County when she committed the theft charge in this case. The court’s mistaken belief is akin to an improper factor because it is not based on the facts admitted and proven in the record.
We disagree.
In sentencing Oelmann, the court did not rely on a misunderstanding
about the timing of Oelmann’s Franklin County theft conviction. After an
exchange with defense counsel, the court corrected its original statement. The
record is clear the court was well aware Oelmann’s Franklin County theft charge
was only pending when Oelmann committed the theft offense in Wright County,
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IN THE COURT OF APPEALS OF IOWA
No. 14-1208 Filed March 25, 2015
STATE OF IOWA, Plaintiff-Appellee,
vs.
REBECCA LYNN OELMANN, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Wright County, Paul B. Ahlers,
District Associate Judge.
Rebecca Oelmann appeals from the sentence imposed following her guilty
plea, asserting the district court considered an improper sentencing factor.
AFFIRMED.
Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary A. Triick, Assistant Attorney
General, Eric Simonson, County Attorney, and Jonathan Murphy, Assistant
County Attorney, for appellee.
Considered by Vogel, P.J., and Doyle and McDonald, JJ. 2
DOYLE, J.
Rebecca Oelmann appeals the sentence imposed following her guilty
plea. She asserts the sentencing court considered an improper sentencing
factor. We find the district court did not rely on an improper factor in sentencing
Oelmann. Accordingly, we conclude there was no defect in the sentencing
procedure. We therefore affirm.
The State originally charged Oelmann with the crime of theft in the second
degree, in violation of Iowa Code sections 714.1(1) and 714.2(2) (2013), a class
“D” felony. The charge arose out of Oelmann’s presenting checks written on a
closed account on September 3 and 4, 2013. Oelmann and the State reached a
plea agreement. The State agreed to amend the charge to theft in the third
degree, in violation of Iowa Code sections 714.1(6) and 714.2(3), an aggravated
misdemeanor, and Oelmann agreed to plead guilty to the amended charge. The
State also agreed to recommend a sentence of 120 days in jail with all but four
suspended, in forty-eight-hour increments, probation for one year, restitution,
plus a fine, costs, and miscellaneous surcharges. Additionally, the sentence
would run concurrent with a sentence imposed against Oelmann in Franklin
County. The court accepted Oelmann’s guilty plea and set sentencing for
hearing. At the sentencing hearing, held in July 2014, the district court imposed
a sentence of 180 days in jail with all but thirty days suspended. Oelmann was
placed on probation for two years. She was also ordered to pay restitution, a
fine, court-appointed attorney fees, court costs, and miscellaneous surcharges.
She now appeals asserting the sentencing court considered an improper factor in
imposing the sentence. 3
Our review is for correction of errors at law. State v. Thomas, 547 N.W.2d
223, 225 (Iowa 1996). The decision to impose a sentence within statutory limits
is “cloaked with a strong presumption in its favor.” State v. Formaro, 638 N.W.2d
720, 724 (Iowa 2002). The sentence will not be upset on appeal “unless the
defendant demonstrates an abuse of trial court discretion or a defect in the
sentencing procedure.” State v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000).
An abuse of discretion is found only when the sentencing court exercises its
discretion on grounds or for reasons clearly untenable or to an extent clearly
unreasonable. Thomas, 547 N.W.2d at 225. The consideration by the trial court
of impermissible factors constitutes a defect in the sentencing procedure. Id.
One impermissible factor is the consideration of another criminal offense
where the facts before the court do not show the defendant committed the
offense. See State v. Longo, 608 N.W.2d 471, 474 (Iowa 2000). It is a well-
established rule that a sentencing court may not rely upon additional, unproven,
and unprosecuted charges where the defendant has not admitted to the charges
or facts are not presented to show the defendant committed the offenses. See
State v. Formaro, 638 N.W.2d 720, 725 (Iowa 2002). When a sentence is
challenged on the basis of improperly considered, unproven criminal activity, “the
issue presented is simply one of the sufficiency of the record to establish the
matters relied on. There is no general prohibition against considering other
criminal activities by a defendant as factors that bear on the sentence to be
imposed.” Longo, 608 N.W.2d at 474. However, if a court uses any improper
consideration in determining a sentence, resentencing is required. Grandberry,
619 N.W.2d at 401. This is true even if the improper factors are a “secondary 4
consideration.” Id. We are not free to “speculate about the weight the trial court
mentally assigned to [the improper factors].” State v. Messer, 306 N.W.2d 731,
733 (Iowa 1981).
At the sentencing hearing, the court asked about Oelmann’s criminal
history. The prosecutor informed the court “there’s a second degree theft out of
Franklin County which was sentenced in February of this year.” Oelmann’s
counsel agreed that was correct and agreed Oelmann’s five-year prison
sentence on that conviction had been suspended. It appears that offense
occurred in June 2013. Prior to pronouncing sentence, the court explained the
factors it considered in fashioning a sentence:
Ms. Oelmann, you are hereby adjudicated guilty of the crime of Theft in the Third Degree, an aggravated misdemeanor, in violation of Iowa Code Sections 714.1(6) and 714.2(3). In terms of a sentence, I believe the sentence I am to impose here today provides for your rehabilitation and protection of the community. To the extent these details have been made known to me, I have taken into account your age, your lack of employment—or I guess your employment circumstances, which is some employment because you are making some earnings from your babysitting job for your cousin, your family circumstances, your criminal history, including the fact that you had already been charged with theft in the second degree and ultimately convicted of that theft in the second degree and ultimately convicted of that offense when you committed the crime that brings you here today.
Defense counsel objected, “I believe we determined that she was convicted
after.” The court responded, “She was convicted after. She was charged, the
Trial Information was filed July 29. . . . Complaint filed July 15. Offense date
here is September 2nd.” The court went on to state, “My point being that you
knew that you had—were in trouble for the prior crime when you committed this
one so you knew those charges were pending when this one was committed.” 5
On appeal Oelmann argues,
The court relied on the misapprehension that she had already been convicted of theft in the second degree in Franklin County when she committed the theft charge in this case. The court’s mistaken belief is akin to an improper factor because it is not based on the facts admitted and proven in the record.
We disagree.
In sentencing Oelmann, the court did not rely on a misunderstanding
about the timing of Oelmann’s Franklin County theft conviction. After an
exchange with defense counsel, the court corrected its original statement. The
record is clear the court was well aware Oelmann’s Franklin County theft charge
was only pending when Oelmann committed the theft offense in Wright County,
and that she was later convicted on the Franklin County charge. Despite the
clarification made by counsel and correction made by the court prior to
pronouncing sentence, Oelmann asserts that “even though the error was brought
to the court’s attention, the record shows that the court still took this
impermissible consideration into account” and that “the court nevertheless relied
on the misapprehension that she’s been convicted of the theft in Franklin County
before committing the present theft in Wright County.” No such showing is made
in the record.
Oelmann further argues that although the court corrected itself, “this does
little to dispel the notion that [the] court still had the previous improper
consideration in mind” because “the court never expressly disavowed reliance on
the impermissible factor.” A disavowal was unnecessary. The court’s correction
was unequivocal: “My point being that you knew that you had—were in trouble
for the prior crime when you committed this one so you knew those charges were 6
pending when this one was committed.” The court merely considered the fact
that Oelmann was already in legal trouble for the Franklin County crime when
she committed another crime in Wright County, which was true. It was admitted
Oelmann committed the crime of theft in Franklin County in late June 2013, a
crime to which she pled guilty.
We conclude the district court did not consider any impermissible factors
in imposing Oelmann’s sentence. We therefore affirm.